Tag: trademark

Atari acquires AtariAge

Atari, Console Gaming
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Today AtariAge proprietor Albert Yarusso announced that he has agreed to a deal to have AtariAge acquired by Atari. Yarusso will stay on and become an Atari employee.

This is an earthshaking announcement for the Atari homebrew community, and raises many questions.

The homebrew game development scene has always been a hobbyist community, first and foremost. As enthusiasm for the hobby grew, in large part thanks to the efforts at community building through the web forums on retro gaming websites such as AtariAge, these efforts became larger and more professional-ish, culminating in the production of physical game cartridges, complete with manuals and packaging which often equaled or even exceeded the quality of original commercially released games from the era when Atari was an industry leader. AtariAge has, for the past few decades, been a de facto leader in the homebrew scene, and gradually turned itself into a publisher and manufacturer of original homebrew games as well as romhacks. (For the uninitiated, romhacks are modified works where an original game has been edited to create a new game, or in some cases a bugfixed or enhanced version of the original game.)

These projects often leveraged earlier copyrighted and trademarked works, creating potential legal liabilities for the developers as well as the entire operation. But for the most part the IP rights owners have been mostly tolerant of these projects, for reasons which we can’t truly know, but may speculate about. Quite likely the IP rights associated with these works in many cases were essentially abandoned, or in many cases may have been deemed to have a low enough value that they were not worth pursuing lawsuits or even cease & desist threats over. And so AtariAge has managed to operate in plain sight, yet under the radar of companies that could have caused trouble that would have sunk their operation entirely.

There have been exceptions of course, and on occasion games such as Princess Rescue, a “de-make” of Super Mario Bros. for the Atari 2600, had to be taken down after actions by the notoriously protective and litigious Nintendo. But, by and large, AtariAge have been able to operate without weathering serious legal storms, and by so doing have kept interest in the old systems alive, and even growing.

Of course, much of the published video games from the early 80s are essentially abandoned by the industry. Many of the original companies went out of business, although their IP likely continues to be owned by someone. Typically the games were deemed obsolete with no real market opportunity for them to continue being manufactured and sold, at least not in their original format. Quite a few of the more popular games have been brought back over the years in collected formats, either ported or emulated on newer generation hardware, or repackaged and sold in all-in-one mini consoles, etc. Although from a legal standpoint copyright and trademark protections persist for the abandoned works, the lack of interest in protecting these rights has allowed hobbyists to ignore copyright and trademark, or to treat them as quasi-public domain properties, which they could then use to create new works. As long as these new works weren’t deemed a threat to the IP holders’ business interests, they were often ignored by them and allowed to skate by, existing in a legal gray area. Something akin to “squatters rights” for abandoned properties has been asserted by proponents of the “abandonware” movement, and I believe that there is considerable merit to the idea that it benefits our culture for these works to be affirmed to belong in the public domain. But that has yet to come, and perhaps may never happen.

In June of this year, AtariAge announced that they were removing certain IP-encumbered titles from the store, offering its customers a last chance to purchase them before they were removed for good. Yarusso offered some faint hope that he would bring these titles back, if and when he could arrange for it to be done with the approval of the rights holders. By being acquired by Atari, it seems that this is now much more likely to happen, at least for those games that belong to Atari. Games for the Atari home consoles which were developed by third parties may not be affected immediately or directly by this move, but it seems like it would be more likely for negotiations to acquire the rights from still-existing third party publishers to happen through Atari than through AtariAge.

AtariAge was mostly if not entirely a one-man operation, with Yarusso maintaining the website, physically manufacturing game cartridges and assembling them, shipping them, and so on, and this was not a primary occupation for him. And that meant that his availability to pursue licensing agreements or rights acquisition was for all practical considerations nonexistent. Now that he is becoming an employee of Atari, this becomes his full-time job, and that affords him more availability as well as more resources, potentially, to pursue agreements with IP owners so that these games may return.

It will be interesting to see what happens with the independent hobbyists who develop the games that are discussed, shared, and released on AtariAge. Technically, I believe that each individual homebrew game is owned by the developer who created it (other than any trademarks that may be used by them without explicit permission of their legal owners) and are manufactured and published by Atari Age with the consent of the developer.

If games published by AtariAge will now be considered “official” releases, released with the intent to be commercial products, rather than handmade hobbyist souvenirs, this could change how hobbyist homebrew developers view their work.

While many hobbyists produce their projects out of love for the hobby, and without expectation of meaningful revenue, that may change as sales go up from niche hobbyist levels to commercially viable levels.

Many homebrew developers may regard this as a positive development, meaning greater sales and more revenue to them for their games. But others may feel differently about this, perhaps not trusting or respecting the current owners of Atari. They may want nothing to do with Atari. Or they may wish to re-negotiate the business terms so that they too are treated as employees, to be paid a salary with benefits in addition to royalties. Or they may wish to be treated as third party developers who are paid under a commercial agreement for commercial releases, if their former hobby is going in a more commercialized direction.

And that could be the undoing of the hobbyist scene. If you don’t care about other people making money off of the work you donate freely to the world, it may not matter. On the other hand if others are creating a business based on games that you’ve spent a great deal of time and skill creating, perhaps you start to feel like you’re rightfully owed a slice of the pie as well. Oftentimes people are more than happy to donate to causes that are not deemed commercially viable, simply because they’re cool, but once enthusiasm for the cool thing grows to the point where it perhaps becomes commercially viable, things can change. Certainly, an individual hobbyist developer may object to Atari asserting ownership of their works, with or without due compensation for it; they may wish to retain all rights owned, even if that means severing agreements with AtariAge to produce and sell copies of their works.

In short, almost anything can happen, and it depends a great deal on how individual players and stakeholders perceive their worth, and how willing they are to play together to keep all the pieces together to enable the magic of game development to continue to put games in the hands of the gamers who play them.

We on the outside aren’t privy to the negotiations on how this came about…

Consider: AtariAge for the past 20 years has hosted a ton of IP that they don’t own copyright or trademark for. Scans of manuals and box art, ROM images, new games created with IP without permission or license of the original owner, etc.

Doing this was a valuable public service in terms of historical preservation. Without someone doing it, much of the cultural artifacts of the Atari era would have been much more likely to be lost forever, or at the very least been much less accessible to the public. And, aside from re-releases of a small subset of games, none of the companies that own these works did anything on the level that AtariAge did to curate these works.

But hosting IP that they did not own did put AtariAge in a precarious legal position. At any moment, the IP owners of the content could have taken legal action to shut AtariAge down.

Who knows, but it’s entirely possible that Atari pulled a power move, leveraging the threat of legal peril to broker an acquisition deal that potentially benefits both parties. It’s shrewd of Atari not to destroy AtariAge — the backlash from Atari’s true fanbase would have been lethal. The takeover could be the best way forward for all involved, all things considered. Even if there may be unavoidable downsides.

Anytime Nintendo takes down a fan-produced game that they didn’t have permission to use Nintendo’s IP for, people have said “I wish Nintendo would have just bought the project and hired them to complete it.”

I have no idea, but something like that could be exactly what just happened here.

How exactly things will shake out remains to be seen, but for now I am hopeful that we’re witnessing the beginning of a bright new era of the AtariAge story.

Reacting to Homebrewer responses to AtariAge discontinuing ports

Atari, Console Gaming, Indie Gaming
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Recently, Atari Age announced that it would no longer sell IP-encumbered products in its store, and would be putting those titles that they planned to discontinue on sale through July 23 of this year.

The Zero Page Homebrew people recently put out a collection of statements by the various luminary developers in the Homebrew scene, and posted them on Facebook as well as covered the news on their video stream.

I have a lot of things to say about this stuff. So, in the spirit of copyright infringement for the common good, I’ve “stolen” the images of each developer’s statements, and offer my reaction to them below. I am nobody special, I just happen to care.

It’s good to see that Champ Games intends to continue developing original games and may pursue licensing rights for ports.

It’s unfortunately a bit naive of Champ Games to announce that they plan to continue to sell ROMs of their IP-encumbered ports. The ROM files are just as subject to IP infringement liability as a physical cartridge is.

I’m reading between the lines a bit, but it seems like Atari Age’s decision to discontinue these games is a pre-emptive effort on their part to limit their legal liability in the event they get sued, and not necessarily a result of any specific takedown effort on the part of the rights holders.

The thing about this is, Atari Age have been operating in this grey market area for many years, and ceasing operations doesn’t absolve them of liability for past transgressions. In principle, the rights holders could go after Atari Age and its affiliates, partners, etc. at any time.

In fact, Atari Age did have to take down Princess Rescue, an Atari 2600 de-make of Super Mario Bros, due to legal action from Nintendo, who are notoriously litigious and vigorous when it comes to protecting their IP.

Legal action can take many forms, from a simple “cease and desist” action to out-of-court settlements, to civil lawsuits to settle tort claims, to criminal charges that could result in fines, imprisonment, etc. There may be statutes of limitations, and a rights holder may or may not wish to take action to protect its IP. Without explicit permission, there’s always the risk that one day some IP holder will wake up and take notice, or decide that “now’s the time” and take action. This hangs like a sword of Damocles over the head of Atari Age and anyone else who chooses to ignore the legal risks of using IP without permission.

Atari Age have managed to operate for many years at a small scale, but the longer they continue to do so, the greater the chances of some IP owner taking notice and taking action. Given the potential liabilities, such action could very easily result in a complete shutdown of all operations, even for fully original works, simply because the IP owner could conceivably be awarded a judgement so large that the infinger is forced into bankruptcy, or due to a legal injunction.

This is true whether you sell or simply give away the works you’re infringing on.

So it does make sense for Atari Age to recognize these risks do exist, and rational for them to want to limit and minimize their exposure.

So the safest way forward would be to completely purge the all infringing material from the store and the website. Leaving IP infringing ROMs available for sale or free download still carries with it risk.

This is unfortunate, and it would seem desirable for the laws to change to somehow be more accommodating for public domain and free use/fair use involving abandoned or inactive IP. But changing the law takes a lot of effort, and we can’t expect that it will happen any time soon, if ever.

So the existing “proper channels” of seeking permission is really the only practical way forward. And even that is very difficult, making it practically out of the reach of many would-be developers, and if the IP owner says “no” there’s basically no recourse available.

Mogno’s statement alludes to the possibility of implementing the rules of a game (which are not copyrightable) to create a new/original work. In other words, a clone game. Conceivably, if you wanted to make a game exactly like Burger Time, you could make the same game but make it about something else, say making Tacos or Pizza, and give it a safe title that couldn’t be construed as diluting the Burger Time trademark or brand, something like Tacomania perhaps. This approach can work to a greater or lesser extent, but it almost never feels as satisfying as playing the “real thing”. That is to say, the trademarked name, characters, etc. all do have real value and contribute to the desirability of the game, and taking these elements out does take something away from the game.

Many of the homebrew port projects have chosen to “soft clone” a game, by making a game that looks and plays as close to the original as possible, but has a title which “parodies” the original, or is a “take-off” of the original title: eg, Qyx is a clone of Qix; RubyQ is a clone of Q*Bert; Galagon is a clone of Galaga; Robot War: 2684 is a clone of Robotron: 2084; etc. How much this actually affords any legal sanctuary for the clone developers is rather dubious, and would need to be tested in courts. Even if the defendants were to win in court, the costs of defending yourself in court is best avoided. Homebrew developers don’t have the legal resources to stand up to corporate legal teams with deep pockets.

Whether you call these games clones, ports, remakes, or de-makes, homebrew games that use unauthorized IP without seeking license are labors of love crafted by hobbyists and shared with the world in homage to a product that could not feasibly be brought to market as a traditional business venture. Many games adapted by homebrewers were never ported to the Atari 2600 at all, or if a port did get an official release back in the day, the homebrew scene can often produce a version of considerably higher quality.

Over time, these homage projects by hobbyists grew in scope and ambition, to the point where people were producing physical cartridges at a level of quality and presentation that rivaled the best professional efforts of real businesses.

This unfortunately blurs the lines between what might be considered “fan” projects and what would more appropriately concern a legal department of some rights holder of some dormant IP that they might feel needs to be protected lest they lose it.

The internet likewise removes many barriers, making it possible for communities to develop who have a common interest in sharing works, for these operations to scale, and to become easy to find — both by other developers and fans as well as IP owners and their lawyers — and easier to scale.

But rather than calling these games “ports” or “clones” or “ripoffs”, I’d like to advocate for calling them “covers”. Much like one musician will “cover” a song written by another artist, creating a new version of the song that has its own distinct merit as a work of art, we can have multiple game developers “covering” the classics, creating their own unique spin in their own signature style. This is something I would very much like to see embraced and encouraged in the video game world. The founders of Activision, the first third party game developer, thought of themselves as “rock stars” who wanted their names to become as famous as their games. Given that real rock stars often cover each others’ songs, I think it’s a great metaphor to extend to the video game industry.

Let developers cover other developers. Let developers remix and sample old games. Let artists do art with video games. Intellectual Property law needs to evolve to recognize the legitimacy of these long-standing and established traditions, and provide for their protection as part of “fair use”.

Games and art existed long before intellectual property law. There are many games which exist in the public domain today. Classic games like Chess, checkers, card games, etc. all can be made by anyone.

Anyone can paint a painting of a subject, interpreting it in their unique way and putting their unique spin or style to it. In many ways, the re-creation of a videogame, especially porting it to a different hardware platform, is an act of creation analogous to an artist painting their own version of some subject.

It is only human to wish to have the freedom to create such artwork. An idea for a game can be created in any number of unique ways, interpreted differently by different creators. And just as some subjects have been painted countless times by thousands of artists, software developers often have the same creative urge to express themselves by creating their own version of some video game. The difference is that video games tend to be commercial properties that are owned by corporations who want to protect their limited monopoly right granted to them by copyright and trademark laws. This stifles and stymies a would-be developer from creating their version of Pac Man or Tetris or Mario in a way that an artist is never restricted from creating their version of a bowl of fruit or Christ on the cross. But a game programmer yearns for the same freedom as the artist.

It would be nice if somehow we could have it, and exercise it without injury to some business that would be able to respond seeking legal remedy. Sadly there is very little to no such safe space for this sort of art to exist.

Squatters rights is a legal concept which says, in essence, that abandoned property can be claimed by someone who takes it.

We could really use something akin to this concept for video games.

There’s a movement to recognize abandonware rights, an idea that if a piece of software is released and sold for a time, and then is discontinued and no longer sold, that the public still has an interest in obtaining and using a copy of the software, indefinitely. This happens much sooner than the expiration of copyright, though, leaving “abandoned” products in a gray area where they cannot be legally obtained by a market that has interest in them, other than to obtain an existing (ie used) copy that was produced when the product was actively being brought to market by its owner.

Abandonware would cover the public’s interest to move video game works into the public domain once they exit the “First Market” (eg, when they are discontinued, perhaps after a certain period during which the original owner has declined to bring them back to the market) so that the public can continue to produce copies of the work in order to meet demand beyond what the “Secondary Market” (eg, used game stores, flea markets) is capable of satisfying.

But we also should lobby for legal protection for developers who would like to make their own version of their favorite game, or to create a version of that game for a system it was never officially released on, or to create variants on a theme introduced by a game, or to “remix”, or to tinker in other ways, such as bug fixes, “cheats”, and other “hacks”.

It’s not to say that the original creator or rights holder should stop having all rights afforded them under IP law, but that the balance currently favors them too much, and for far too long.

When I was in school, I learned that in the pre-industrialized world there was a system of apprentice and masters, of guilds, and so forth, and that was how knowledge of the trades and useful arts was handed down through generations. An apprentice artist would often be required to create an exact copy of a masterpiece painting, whether as part of their training, or to create duplicates of important works so that they could be enjoyed more widely. This was in a time before photography, before telecommunications, so the only way to copy a painting was by hand, and to do it required great skill to match the technique used in creating the original to a faithful degree so fine that it took an expert to know the difference between the original work and the copy.

I think a lot of programmers, game designers, and developers have an instinct to want to do something similar with video games, to be able not to copy them in the trivial way afforded by binary data systems supporting digital file copying, but to look at the original and learn the techniques of the master and attempt to replicate them faithfully to the best of their ability.

We like to do this as much as we like to work on our own ideas. Howard Scott Warshaw’s point that creating is very different from copying is of course valid, but both are legitimate pursuits for a creator. Some of us are very good at ports, while lacking the design skills to create new original works. But we should not devalue porting because of that, and we should not prohibit all ports that are not explicitly authorized by some “rightful owner”. For a time, certainly, the rights of the creator should prevail. But after some time, a limited time, the works should enter into the public domain. The current length of copyright for software, particularly video games, was adapted from print media, when it should have been modified to better suit the different nature of digital platforms.

To the extent that some in the homebrew scene will continue, with renewed focus on more new original works, that’s of course welcome and great.

But I would think that most people working on a new idea will want to explore it on a newer platform. There are homebrew projects to create original works for obsolete systems, and there always have been.

But if you were going to create something new and original, unless you wanted to take on the challenge of the additional constraints imposed by developing for outdated hardware with severely limited resources, you’d probably target modern platforms. So a lot of new/original development energy tends to be pointed at modern platforms.

Yet there’s an undeniable appeal to creating games for older systems — particularly taking some favorite, old game, that was developed contemporary to some old system, but never for that system, and “fill in the gap” by putting out a version ported to that system that had never existed previously, like Galaga or Robotron 2084, or were very poorly done, such as Pac Man, or a sequel to a great game like Pitfall or Adventure.

Another fun challenge for a developer is be to take a Sega Genesis game (such as Sonic the Hedgehog) and see if you can capture its essence and replicate it on a game console that predated it by something like a dozen years. Whether you have permission to use Sonic or not, that’s a fantastic challenge, and to develop such a game for private enjoyment, while not getting to share it with the world is a bit like running in the Boston Marathon without any spectators being allowed to partake in the excitement of the day.

Could Chris Spry have developed Zippy the Porcupine (the Sonic the Hedgehog Atari2600 de-make) privately and allowed the obscurity and anonymity shield him from Sega lawyers? Certainly. But wasn’t the public nature of the product something that enriched everyone who learned of its existence, or got to play it?

No marathon runner who runs today is the original messenger from Greek antiquity who ran to the city of Marathon with important news… But we don’t hold that against them, do we? And we who stand streetside observing the spectacle of this event are enriched by it, even though the first Marathon runner is long dead and doesn’t get any royalties from it.

I’ve already touched on these points, above. The “last chance” sale is a kindness to the fans who have kept obsolete video gaming platforms alive for decades after they exited the market. But it’s not free of legal liability, and could in fact expose Atari Age to greater risk due to the attention the sale is getting, the increased awareness of the topic of the homebrew scene and of its intersection with IP law.

It’s a bit arbitrary where the line is to be drawn with respect to what’s a liability that needs to go, and what isn’t. Why isn’t Medieval Mayhem and Space Rocks a part of the sale? Medieval Mayhem was an Atari coin-op game for the arcade, back in the 80s. How is an unauthorized remake of it on the 2600 it not IP-encumbered? Space Rocks is just a really well done port of Asteroids, surely it assumes some non-zero amount of risk as well.

DeCrezenzo is a titan of the homebrew scene, and if he is indeed leaving due to this, it is truly a sad thing. If there was a Hall of Fame for homebrew developers, he’d be a charter member. He’s had a long “career” in the scene, with many, many contributions, so even if he simply retired, he’ll have at least left behind a monumental legacy… of games which sadly will no longer be made due to the legal realities that encumber this hobby.

If there’s a positive thing to be taken away from this, it’s that there are developers who will continue to remain in the scene, and will shift their focus to developing new game ideas. This is exiting.

As much as we like the familiar games we know, that never existed on a home console, or were never done justice in their official home port, there’s still tremendous potential in the system — even 45 years after its release, and 30 years on from its official exit from the primary marketplace.

That’s nothing short of remarkable, and if the new original games that we’re sure to see in the coming years stack up as well as the remakes and ports that we were fortunate to get to experience, the future is as bright as ever for fans, enthusiasts, and collectors of classic gaming consoles.

Long live the Atari 2600. And long live Atari Age!

Atari Age announces final sale of homebrew arcade ports

Atari, Console Gaming, Indie Gaming
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Copyright, Trademark, abandoned properties, lawyers.

Who knows what the details are? Not me, that’s for sure.

Games that were popular in the arcades in the early 1980s were often ported to home consoles of the day, but often did not receive the best treatment at the time.

For many reasons.

Primarily hardware limitations. Home systems of the day could not be as powerful as more expensive, dedicated hardware developed to play a specific arcade game.

But also budget and time constraints. Games were a business and development costs were constrained by expected returns. It would have made no sense to spend more money making a game than it could have been expected to bring in. Games were made to deadline, and often had to cut corners to meet them.

If they were too late to market, their popularity in the arcade could have waned, resulting in poor sales, missed opportunities.

Partly, to avoid cannibalizing arcade revenue (the logic being if the home game was just as good as the arcade, players would buy the home game and stop going to arcades.

The homebrew scene which has kept old systems alive long past the date at which official support ended has no such constraints. Game development is a passion project, a hobby, and an art before it is a business. Developers take as long as they need to perfect a game, and no reason to fear undercutting arcade revenue.

And system limitations can be overcome with additional hardware inside the cartridge, and advanced programming techniques that have been discovered in the decades since the system first became available.

So homebrew ports of arcade games did something that couldn’t be done commercially, often for games that had been abandoned by their intellectual property owners.

The success of this long tail aftermarket scene has rekindled interest in classic gaming, though, and nostalgic re-boots of old brands have brought about a change in the market. These games, once small enough to fly under the radar and escape the notice of rights holders legal departments, have become legally risky ventures.

I can only presume, but this seems to be the reason why Atari Age has announced that they are going to remove many titles from their store. The last chance sale on remaining inventory will end on July 23, after which these games will no longer be available through Atari Age, likely forever.

Atari Age proprietor Albert Yarusso has stated that he will be focusing on publishing original games and games for which licensing can be procured. “It’s possible some of these can come back, but it will take some time to do the legwork. I wholeheartedly encourage developers to create new games that aren’t encumbered, or to ask me in advance regarding projects that might be derived from others’ work.”

This would seemingly put an end to my hopes for a cartridge release of the beyond amazing Pac-Man 8k project, which I’ve been watching for about a decade, and was apparently very nearly ready to publish. Beyond that, there were many other work-in-progress projects that looked amazing but will probably now only be developed as ROM files, with no cartridge release, if development continues with them at all: Xevious, 1942, Lunar Lander, Elevator Action, and others.

This is a very sad thing indeed. But lawyers gonna lawyer. Copyrights don’t expire fast enough, and Trademarks can be lost if not enforced, and that’s what happens. Hobbywork homages be damned.

I love to see the original works that homebrew developers make, maybe even more than revivals of old arcade games that never got a proper treatment on the home systems. But seeing a modern homebrew remake compared to an official release of an original game from 40 years ago, being able to see how much progress had been made in the art of programming in those intervening years, was always such a treat, and a true thrill.

Copyright, contractual obligations screw Ms. Pac Man out of existence

Arcade
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Ms. Pac Man has an interesting history.

Pac-Man, the original game, was developed by Namco in Japan, and distributed by Midway in the United States, and was a massive, massive hit — the most popular arcade game of its day, and still one of the most popular arcade games of all time.

The videogame industry was different 40 years ago than it is today, and video games were still new enough that a lot of the intellectual property rights weren’t yet established in law, leading to unsettled (and often unasked) questions.

As a result, there was a sub-industry of third-party mod kits for arcade games, which gave arcade proprietors a way to renew interest in older games that had waned in popularity. It wasn’t illegal to modify an arcade cabinet that you owned, and so over time kits were developed by third parties to do just that.

One of the companies producing these hardware mod kits, named GCC, hacked Pac Man to create an unofficial “sequel”. To avoid trademark infringement, they named it “Crazy Otto” at first, but that wasn’t enough to avoid a lawsuit. In the end, a settlement between GCC and Namco turned Crazy Otto into an official sequel which became Ms. Pac Man.

GCC’s contract entitled them to royalties on each Ms. Pac Man cabinet manufactured or sold by Midway-Namco. Ms. Pac Man was a smash hit, just as popular as the original Pac Man. Everyone got rich and everyone way happy.

Ms. Pac Man went on to have a long life, and has been ported, re-packaged, and re-released on many platforms over the years, but GCC’s contract entitled them to royalties only from “coin-op cabinets”. Twenty-five years later, new cabinets were produced for the anniversary, and hybrid Galaga/Ms. Pac Man cabinets were a popular sight in bars in the mid-2000s.

By this time, the executives now running Namco had forgotten about the contract with GCC, who reminded them of it by suing for their royalties. Namco paid what they owed, and weaseled out of paying on arcade cabinets made for home use, which didn’t have coin slots, since the contract wording specified “coin-op cabinets” (which was simply what arcade machines were called at the time the contract was signed). And then, to avoid ever having to pay another royalty to GCC again, Namco wrote the Ms. Pac-Man character out of the picture, replacing her with other female pac-man characters such as “Pac-Girl” and “Pac-Marie”. Thereafter, future Ms. Pac-Man re-releases only came out on platforms not covered by the GCC contract, so Namco wouldn’t have to pay the royalties.

It just goes to show the level of sheer greed that companies have when it comes to paying creators and ownership of intellectual property. If the company can make money without having to pay the creators, they will do that. Granted, GCC wasn’t producing an authorized work, and this could have colored the relationship. But considering how much money Ms. Pac Man earned for everyone over the years, you’d think that those profits could go a long way toward smoothing over any rough spots in the relationship. Apparently not.

GCC later sold their ownership rights to Ms. Pac-Man to AtGames. If they had instead sold to Midway-Namco, this might never have been an issue. But because of how things worked out, one of the most iconic videogame characters of the 80s golden age of the arcade is basically sidelined indefinitely. Because contested or jointly owned intellectual property rights are that much of a legal pain to negotiate around that it’s better to just kill the property and make no money from it at all than to try to work out agreements for sharing revenues. How sad.

The Debt We All Owe to Emulation

games
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Emulation is a broad topic within computer science. This article is specifically about emulation of video games.  There are many other purposes to which emulation may be applied as well, and it’s important not to lose sight of that.  Emulation is a general purpose tool, not merely a tool for piracy.

Old video games have become valuable to collectors in recent years. My generation grew up with video games, and much as the previous generation valued comic books and baseball cards from their youth to the point where they became worth serious money in the 1980s and 1990s, antique videogames have similarly grown in value.

It wasn’t always thus. For a good couple of decades, old videogames were considered obsolete junk. No one wanted them (except maybe a few very geeky people such as myself.) Mostly when a new system hit the market, people forgot about the old generation and within a year or two they weren’t available in the retail channel anymore, or were perhaps on clearance in dollar bins.

Importantly, the manufacturers didn’t continue to manufacture old generation hardware.  Although it became cheaper and cheaper to do so, there still wasn’t enough demand in old systems to keep them viable in the face of new competition. More to the point, manufacturers would have been competing against themselves.  And when trying to recoup the cost of major R&D budgets that produced that next generation, they wanted (and needed) the market to be focused exclusively on that new system. Keeping the old generation system alive would have cannibalized sales, and hurt profitability, and this would have stalled the progress of innovation.

We saw this with Atari. The 2600 was the system that broke through into nearly half of American households in the late 70’s and early 80’s. At the time, it wasn’t obvious to the general public that there was going to be a new generation every several years as Moore’s Law continued to work its magic to enable cheaper, more powerful computing technology.  Internally, Atari struggled with releasing their next generation system, the 5200. With tens of millions of 2600 consoles already in homes, the revenue stream represented by cartridge sales for the established console was too important for Atari to walk away from it. The 5200 wasn’t backward compatible (although an adapter for 2600 games existed) and Atari felt that the average consumer might feel alienated and abandoned if they had to go out and buy a new, expensive console.  As a result, Atari kept the 2600 alive an incredible 15 years, finally stopping production in 1992.  The 5200, launched in 1982, was hampered by a variety of factors, and never had the same level of success — it was expensive, lacked backwards-compatibility, the library was mostly the same titles as were available on the 2600, only with better graphics, the controllers were delicate analog joysticks that annoyingly didn’t automatically re-center, it contended in the market with rivals Coleco and Mattel, and then the 1983 crash of the North American market cut short its heyday.

The business data was always very clear on this. With video games, what was hot today was gone a few weeks or months later, or in the case of smash hits, maybe a year. New product constantly distracted and replaced old product, with a few notable exceptions such as Pac Man and Donkey Kong, most video games didn’t have staying power in the market.

Obviously, that’s not to say that old games started sucking and were no longer fun to play. They didn’t. But their enduring appeal didn’t translate into sustainable marketability.  And that’s why successful games spawn franchises of endless sequels and a multiverse of linked-IP titles. And the old constantly gave way to the new. And the business always wanted the market to be focused on the new, because that’s where sales were.  (But yet, in other market segments, they keep making chess sets, decks of cards, balls, copies of popular board games that have been enjoyed for generations, such as Monopoly, etc.) For some reason, the prevailing wisdom was you couldn’t sell a videogame that everyone had already bought.

Well, until recently. A little over a decade ago, Nintendo introduced the Virtual Console on Wii, and started selling us games that they had made in the 1980s and 1990s.  And we bought them. In many cases, we bought them again. For some, it may have been the first time.

Even that wasn’t a completely new thing.  Every console has had classic games ported to it.  Atari has continually re-packaged its greatest hits into collections that have been sold on just about every console and platform that has been released since the original system exited the market. Virtually every big game developer has done it as well: Activision, Sega, SNK, Midway, Namco, and on and on.

And what made that possible?

Emulation.

Without emulation, putting an old game on a new system would have meant porting it, essentially re-writing the game from scratch. And ports were never capable of being entirely faithful to the original. There’s always differences, often substantial, to the point that the nostalgic value of a port is never quite there.  It’s not like playing the original.  You can never go home again.

But with emulation,  you could. Emulators were magic. With an emulator, a new machine could be made to work nearly exactly like some older machine with a completely different architecture, and run software for that older machine without further modification, and the results would be virtually indistinguishable from that software running on original hardware.  

The old systems may burn  out and break down.  The factory could stop making them and shift production to other, more profitable, more in demand product lines. But as long as someone could write an emulator to work on modern machines, old games could live, in theory forever.

Game companies, mostly, did not want that. Especially if there wasn’t some way to make money from it. And once full retail priced sales for a game, or generation of games, stopped being feasible, game companies dropped the product line entirely. Their expectation as the buying public would follow on to the next new thing, and that’s where the industry wanted all focus.  

So game emulation, in its earliest incarnation, was an unauthorized, underground enterprise, a labor of love by gamers desperate to keep the games they loved from disappearing entirely, as they surely would have without their efforts.

And what good is an emulator without something to run on it? This is where ROM dumps come into play. Anyone can tell you that emulation isn’t illegal, doesn’t violate any copyright or patent or trademark law. But ROMs, those are a different story. Copyright law is clear enough about making unauthorized copies of copyrighted works for distribution and especially for profit. There are limited provisions for making copies of works for personal use, of a copyrighted work which you own a copy of, for archival/backup purposes, for academic purposes, for criticism and review purposes, for time shifting and platform shifting, and so on.

Archival/backup purposes fit the context of ROM dumping best, but even so, technically this is a personal use right, meaning that in theory (to my knowledge this has not been tested in the courts) a person could legally dump the ROM of a game that they personally own, for use as a backup, and use an emulator for platform shifting that work onto a new platform.  But that’s a personal copy — they still don’t have any right to distribute that.  And even if my copy of Super Mario Bros. 2 is exactly the same as the copy that someone else already dumped for their own personal use, I can’t (legally) take a shortcut and make a copy of their dump; I have to produce my own.  Which takes time, effort, equipment, expertise, and the vast majority of people do not have that, nor do they have the inclination. So people did the only reasonable thing there was to do: they shared copies of existing ROM dumps. And yes, this meant that many people obtained copies of ROMs that they didn’t own an original copy of. And this was copyright violation.

And yet, for a long time, there still wasn’t enough value in emulation for the rightful intellectual property rights holder to have incentive to do anything about this situation.  And so, as a result, the Abadonware movement began, and the underground emulation scene grew and grew and grew.

You can go to a bookstore today and buy a new copy of a book written hundreds of years ago.  At least, certain ones.  You can’t go to a retail store and buy a new copy of a video game produced 40 years ago.  Not most of them. Sure, today there’s now a few exceptions, if you want to count systems like the Atari Flashback or NES Classic.

But — these systems only cover a small fraction of the catalog of titles that were released for those systems.

And — those systems are only possible because of emulation.  They’re dedicated emulation boxes. That’s right.

For $60, you can buy a tiny selection of really great games, and through the magic of emulation, play them on a modern HDTV. Much of the work that made that possible was pioneered, for free, by enthusiasts and hobbyists who made it their mission to preserve the past and ensure that some game that they loved would be available forever.  For free.

And more than just preserving the popular hits of yesterday, the emulation scene also provided equal attention to games that virtually no one had played, and even fewer people care about, or even knew about.  Rare games that hadn’t performed well on retail release, but were nonetheless good games, have gotten a second wind and rebirth, in large part because someone in the emulation scene ripped a copy of it, and distributed it for free so that thousands of people could experience it.  Games like Little Samson, a NES rarity that sells for thousands of dollars for an authentic copy, could not be experienced by the vast majority of people, without a ROM dump and an emulator.  And probably the black market distribution of this ROM is what helped make people aware of it, to create the demand that gave rise to the premium price that the original now commands.

Companies like Nintendo didn’t want you to play their old games, at one time, for a long time.  But now that the emulation scene proved that those games did have lasting appeal and historic value, now Nintendo would like to sell you those games again. And because they can, they seek to destroy the underground movement that showed it was viable and created the technology that made it possible.

I find this incredibly sad, aggravating, and tragic. I may have a personal collection of physical cartridges in my gaming library, but I certainly couldn’t replace them at today’s prices if they were lost.  And that hardware’s not going to last forever.

Copyright used to have a limited term, and this would have made things a lot easier for the emulation movement to happen in a completely legal way. But over the years, large companies have continually altered intellectual property laws — always to their benefit, never for the public good — to secure a perpetual right to works, robbing the public domain of a rich future. 

Robbing the public.

Robbing all of  us.

Review: No Mario’s Sky/DMCA’s Sky

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In my last post, I talked about the recent copyright and trademark infringement takedown actions initiated by Nintendo against No Mario’s Sky and various other games hosted on GameJolt.

Here’s a review of No Mario’s Sky/DMCA’s Sky.

No Mario’s Sky was made in a weekend for Ludum Dare 36. It is a mashup of Hello Games’ No Man’s Sky and Nintendo’s Super Mario Bros. The theme for Ludum Dare 36 was Ancient Technologies. It’s unclear how this game relates to the theme. However, due to the popularity and familiarity of Mario and No Man’s Sky, the game got quite a lot of attention in very little time, and was picked up by websites such as Kotaku and Polygon.

The premise of the game is that Mario is looking for the Princess on an infinite series of procedurally generated 2D Mario worlds. The worlds wrap around a circle, giving them the appearance of planetoids.

Once you’ve satisfied your curiosity on one world, you can summon your spaceship and take off in search of another world. Apart from the color scheme of each world, there’s not all that much to differentiate them, which may be due to the game being developed in just 72 hours, or may be a deliberate commentary on the procedurally generated sameness that many players of No Man’s Sky have complained about.

No Mario's Sky

From a Mario standpoint, the game only borrows the titular character, the goomba enemy, and the basic concept of jumping on platforms and enemies, collecting coins, and hitting platforms from below. No sprite artwork is taken from Nintendo’s games, as all sprites and tiles appear to have been re-created by the ASMB development team, and while the Mario and Goomba characters are recognizable, they are not in any way confusable with Nintendo art assets. There is no brick breaking, no super mario mushroom, no star man, no fire flower. Again, this is likely due to the compressed schedule under which the game was created. Each world plays its own variant of the Super Mario Bros theme music, which is again a re-done composition, not the original music ripped from the Nintendo game.

In short, from a copyright infringement standpoint, this game is in a gray area, but pretty safe, in that nothing is actually copied directly from the Nintendo games. This game is about as much a Mario ripoff as KC Munchkin was a Pac Man ripoff. (Atari successfully sued Philips to stop the sale of K.C. Munchkin, even though the game was not Pac Man, but the case was bullshit and probably would not have succeeded were similar suit brought today.)

From a trademark infringement standpoint, of course, the game clearly is using the identity and behavior of the famed Nintendo mascot, without authorization or permission of Nintendo. If this were a commercial product, it would certainly be liable for trademark infringement. However, this is probably closer to a parody, or a “fan game” or homage. Unfortunately, the latter two concepts don’t exist as legal categories. It might be that the creators could have successfully defended the game as a parody, but that would have involved going to court and rolling the dice to find out whether they could persuade a judge of that. There’s simply no way an independent developer has the time or resources to try to defend what amounts to a weekend’s worth of work against a company the size of Nintendo for what would surely be months or years of litigation.

If ASMB had avoided use of the Mario name, perhaps renaming him something recognizable, like “Mustachhio”, say, and if the music had been done in a way that was recognizably Mario-eque without having the exact same melody, probably Nintendo would not have had any copyright leg to stand on, and the game could have remained as-is. From a trademark standpoint, though, it probably does run afoul of Nintendo’s trademark on the Mario Bros. franchise, given that it uses the Mario and Goomba names and likenesses.

While the game is fairly bland as-is, the concept is certainly fun and held promise. Were the game to be developed further, to better incorporate the Mario characters and play mechanics, it could have been a very enjoyable game.

DMCA’s Sky removes the Mario and Goomba artwork, replacing them with a generic space man and alien, and the music has also been replaced, but otherwise the game is much the same. Interestingly, the jump, coin and 1-up pickup sounds remain recognizably Mario-esque, but again do not appear to be direct rips from original sources.

DMCA's Sky

I suppose Hello Games could also make an IP infringement claim if they wanted to, and force the game to remove the procedurally generated planet hopping, at which point the game wouldn’t have much left in it anymore. Notably, so far at least, they haven’t.

It turns out, though, that when you break down just about any video game into its fundamentals, pretty much every game is based on, or borrows from, concepts that came from some other game. And — this is the important thing that must not be lost sight of — concepts are not subject to copyright. Not even play mechanics are copyrightable. Only actual works are copyrightable.

Of course, copyright is only one branch of Intellectual Property law, and there’s also potentially opportunity for patent and trademark lawsuits to shut down a game that borrows “too much” from a well known existing game.

Despite this, much of the charm of No Mario’s Sky was in its mash-up-ness, and this charm is effectively stripped from it by removing the Mario references. So clearly, the game derives some value from referencing the source material that it is based on. I don’t think that can be denied. I have a harder time seeing how this game harms either Nintendo or Hello, however. It was available for free, not for sale. It isn’t reasonably mistake-able for a real Nintendo game, and if that were a risk it could be prominently disclaimed on the title screen that it was not in any way connected to Nintendo, who retains full ownership of the “real” Mario characters. I see little evidence that the existence of this game or the numerous other Nintendo-IP infringing games done by fans over the years (including ROM hacks, homebrew games, de-makes, and homages) has in any way diminished the Nintendo brand or harmed Nintendo as a business.

The takedown of unauthorized fan games isn’t anything new — it’s just the latest in a string of consistent defenses of Nintendo’s IP rights. It’s clear that Nintendo is aggressive in protecting their IP rights, and have always been. This has been in part due to their corporate culture, but also in larger part due to the nature of IP law.

But IP law isn’t immutable. We could as a culture elect to shape law differently, if we could agree to.

Nintendo’s takedown of videos on youtube and elsewhere, of people playing their games who do not participate in or follow the rules set forth by Nintendo in the “Nintendo Creator’s Program” is ridiculous — it’s not a copyright infringement for me to play a video game, or to talk about a videogame, or to record me talking about a videogame while playing it, and footage of said videogame that I create should legally be my sole creation (while the characters owned by Nintendo and other IP-holders are still retained by those holders).

If I want to make a video of a videogame for purposes of review, criticism, or parody, I shouldn’t have to obtain the permission of the IP rights holders of the videogame, nor should I have to share revenue with them. They earned their revenue already through sale of the game, and did none of the work to produce the video, so why should they be entitled to a share of revenue generated by the video?

Likewise, if I want to make a videogame that references other videogames, much as a work of literature may reference other works of literature, creators should have some right to do so. Exactly how this should work out so that the original creator’s rights are protected and respected isn’t very clear, however.

Ultimately, the power seems to fall to those who have the deepest pockets with which to pay the most and best lawyers. As as a result, the culture, and the game playing public, is poorer for it.

Mario on iOS, Nintendo copyright takedown

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Nintendo announced the first (authorized) appearance of Mario on iPhone a few days ago:

There’s much to be made of this.

Ten years ago, while the Wii was selling phenomenally well, there were some wild rumors about Nintendo and Apple teaming up to bring games to the Apple TV device. But, while tantalizing, these rumors never panned out, nor really made sense. While both companies were extremely successful on their own, they didn’t really seem to need each other, or have any reason to cooperate. Nintendo software licensees could have certainly helped put Apple TV in many more homes, but what could Apple have offered Nintendo, who weren’t having any trouble selling the Wii?

Fast forward to 2016, and the successor to the Wii, the Wii U, is widely regarded as a misstep for Nintendo, and now it appears maybe they do need some help. But rather than looking for it in the living room, where they are poised to launch their next-generation NX console in a few months, right now they are going straight for the pocket. Meanwhile, Apple’s huge hit from 2006, the iPhone, has been a juggernaut for much of these last ten years. And here is where Apple and Nintendo can help each other out.

It’s the first time in decades that Nintendo has put software out on a platform that it does not own. This could be seen as a concession that Nintendo is no longer dominant in gaming hardware, or simply an acknowledgment of the vitality of the mobile gaming market. While Nintendo have been hugely dominant in the handheld market since they released the Game Boy in 1989, smartphone and tablet devices have in the last decade created an even bigger market for games. With the massive success of Pokemon Go earlier this year, the writing was on the wall, and Nintendo making this move now only makes sense. In fact, it’s probably overdue.

Entitled Super Mario Run, it appears to be an endless runner type game rather than a typical 2D platformer. Due to the iPhone touch screen being the only controls, and a desire to make the game playable one-handed, this design addresses the constraints imposed by the user interface in about the only way that would work well.

More Nintendo Copyright Takedowns

Nintendo also made headlines this week by issuing takedown notices for a large number of unauthorized games that infringe upon Nintendo-owned trademarks, particularly Mario and Pokemon. It is not surprising at all that this should happen, but still disappointing for people who built or enjoyed those games. While many of these games may have been derivative and inferior games done in homage of, some were parodies or innovative or just fun, well done fan homages.

It’s too bad there doesn’t exist a legal framework in which fan-made games can co-exist peacefully with official releases by commercial studios, but licensing is only a solution if the IP-holder embraces it. Nintendo are within their rights to take these actions to protect their trademark and intellectual property rights, of course, and perhaps it is necessary for them to vigorously defend their trademarks or risk losing them entirely, but it’s nevertheless possible to set up a legal framework by which these unofficial games could be allowed. While it’s entirely ridiculous in my opinion for Nintendo to claim copyright and trademarks on speed run, Let’s Play, and review videos featuring their products, something like the Nintendo Creators Program would make a lot of sense for fan-produced games.

What might such a program look like? I would propose something like the following…

  1. The fangame creator would acknowledge that Nintendo created and owned whatever they owned.
  2. The fangame creator disclaims that Nintendo do not have any responsibility for content the fangame, and that the fangame is not an official Nintendo release.
  3. Any revenue derived from the fangame would need to be disclosed and shared with Nintendo.
  4. The fangame could be nixed by Nintendo (pulled from release) at their sole discretion at any time.

I very much doubt that a company like Nintendo would ever agree to such terms, but it’s too bad. Apart from perhaps Nintendo, everyone is worse off because of it.

The irony of this situation is that Nintendo can copyright and trademark its characters, but not the mechanics or genre of game. (Nor should it.) Someone can invent the infinite runner, and Nintendo can decide to do a Mario infinite runner game, and not owe anything to the inventor of the infinite runner game. So can anyone else. And Nintendo can make a running and jumping platform game, and anyone else can too, duplicating the Mario mechanics and rules system entirely if they should wish to, but simply can’t use the name Mario or the likeness of any of Nintendo’s graphical or audio assets.